U.S. Supreme Court Hears Powerful Argument for Concealed Carry
On November 3, 2021, the Supreme Court of the United States heard oral arguments in the case of New York State Rifle & Pistol Assn. v. Bruen.
The proceeding lasted nearly two hours and put on full display the strength and logic of the argument in favor of concealed carry and the ignorance and disdain of the argument against. Based on these arguments, and on the questions and comments of the conservative justices, I think there is a good chance for a ruling supporting Second Amendment rights.
At question in this case is New York's 108 year-old-law that requires anyone applying for an "unrestricted" license to carry a concealed firearm outside the home to show "proper cause." The state of New York defines proper cause in a way that makes it difficult, if not impossible, for most people to acquire a license.
You must demonstrate that you have a special and specific need to defend yourself. The rich and famous, and those with political connections, can get licenses with ease. But ordinary residents of the state, especially those in New York City, are unlikely to do so.
Robert Nash and Brandon Koch challenged the law after New York rejected their concealed carry applications based on their failure to show proper cause, even though they met every other requirement. A district court dismissed their claims, and the U.S. Court of Appeals for the Second Circuit affirmed. The case was then taken up by the Supreme Court.
In presenting the case to the court, attorney Paul Clement argued that the Second Amendment enshrines the right to not only "keep" arms in the home, but also to "bear" arms outside the home for self-defense. Given that New York prohibits open carry, and in practice severely limits concealed carry, his clients' rights are being infringed.
He pointed out that carrying a gun in public is a right enjoyed by residents of 43 other states. He stressed that when it comes to a constitutional right, people should not have to satisfy a government official that there is a good reason to exercise the right.
The liberal justices pushed back hard, questioning Clement's interpretation of the history of gun laws. Justice Breyer appeared to become agitated at one point and revealed his fear of guns when he blurted out this:
Yeah. Well ... you have a concealed weapon to go hunting. You're out with an intent to shoot, say, a deer or a rabbit, which has its problems. But, here, when you have a self-defense just for whatever you want to carry a concealed weapon, you go shooting it around and somebody gets killed.
Their premise, and the core argument of opposing counsel, was that guns are dangerous and should be limited in highly populated areas. This led to an absurd exchange between the Solicitor General of New York and Chief Justice Roberts:
CHIEF JUSTICE ROBERTS: ... if the purpose of the Second Amendment is to allow people to protect themselves, that's implicated when you're in a high-crime area. It's not implicated when you're out in the woods.
MS. UNDERWOOD: Well, I -- I think it is implicated when you're out in the woods. It's just a different set of problems. I mean, you're --
CHIEF JUSTICE ROBERTS: Yeah, deer.
MS. UNDERWOOD: -- you're deserted there and you can't -- and law enforcement is not available to come to your aid if something does happen. But --
CHIEF JUSTICE ROBERTS: Well, how many muggings take place in the forest?
MS. UNDERWOOD: If we -- if we --
CHIEF JUSTICE ROBERTS: How many do you think?
It is worth noting that Buckeye Firearms Association submitted an amicus brief in this case, and the subject matter featured prominently in the oral arguments.
You can download the brief here.
Specifically, it deals with the Statute of Northampton, a nearly 700-year-old English law cited by New York as prohibiting the public from going armed. This is a willful misreading of the law, which actually prohibits the carrying of arms only when done "in terrorem populi," or "to the terror of the people." In other words, this law dealt with bad guys carrying guns for bad purposes. The common law was not used to prevent people from carrying arms for lawful purposes.
The court is right to take up this case, and it's high time to closely examine New York's draconian gun control laws. The state requires a permit to possess a handgun, ammo sales are restricted, semi-auto rifles are restricted, there is no castle doctrine, open carry is prohibited, concealed carry licenses are "may issue," and there is no recognition for out-of-state licenses.
However, don't expect a broad proclamation from the court on Second Amendment rights. The court has previously issued narrowly-focused opinions in D.C. v. Heller and McDonald v. City of Chicago. We are likely to see the same in Bruen.
The specific question before the court is whether New York's law violates the Second Amendment by requiring applicants for unrestricted concealed carry licenses to demonstrate a special need for self-defense. So the ruling may be simply that the state has to move to a "shall issue" system and do away with the special need requirement.
Whatever form the ruling takes, two things are almost certain. One, we'll need additional rulings to flesh out carry rights. And two, New York won't give up a century of gun control so easily. They'll continue to impose whatever onerous laws they can get away with. The real effect of a good ruling will be to set a new standard on carry laws for all 50 states in the same way Heller and McDonald did for the individual right to possess a firearm.
Dean Rieck is Executive Director of Buckeye Firearms Association, a former competitive shooter, NRA Patron Member, #1 NRA Recruiter for 2013, business owner and partner with Second Call Defense.